Volume 136 — Tennessee Reports

<p>PROM SHELBY.</p> <p>Appeal from the Circuit Court of Shelby County to the Court of Civil Appeals, and by certiorari to the Court of Civil Appeals from the Supreme Court. —A. B. Pittmast, Judge.</p>

<p>FROM SHELBY.</p> <p>Appeal from' the Circuit Court of Shelby County to the Court of Civil Appeals, and by certiorari to the Court of Civil Appeals from the supreme Court.— Ben L. Capell, Judge.</p>

<p>1. CONSTITUTIONAL LAW. Failure to support. Statute penalizing. Imprisonment for “Debt.”</p> <p>Acts 1915, chapter 125, penalizing the offense of willfully and without cause neglecting and failing to provide for one’s wife, is not violative of Const, art. 1, section 18, providing that the legislature shall pass no law authorizing imprisonment for debt in civil cases; the word “debt,” as used, covering only such obligations as arise between debtor and creditor by express contract or by the law’s .implication. (Post, pp. 33-35.)</p> <p>Acts cited and construed; Acts 1915, ch. 125.</p> <p>Cases cited and approved: Adams v. Adams, 80 N. J. Eq., 175; Ex parte Davis, 101 Tex.,. 607; Carr v. State, 106 Ala., 35; State v. Prudential Coal Co., 130 Tenn., 275; People v. Heise, 257 Ill., 443; Ex parte Bridgeforth, 77 Miss., 418; State v. Morgan, 141 N. C., 726.</p> <p>Case cited and distinguished: State, v. English, 101 S. C., 304.</p> <p>Constitution cited and construed: Art. 1, sec. 18.</p> <p>2. HUSBAND AND WIFE. Failure to support. Statute penalizing Validity.</p> <p>Said law is valid, though not directed alone against a husband who allows his wife to become a public charge, involving the public interest, but purports to punish a husband whose wife naay be able to earn her livelihood independently of him, since the legal duty to support does not rest oijily on husbands of wives who are indigent or who may be so but for their own endeavors. (Post, pp. 35-37).</p> <p>Cases cited- and approved: People v. Malsch, 119 Mich., 112; Poole v. People, 24 Colo., 510; Commonwealth v. Acker, 197 Mass., 91; Draper v. Commonwealth, 115 Va., 941.</p> <p>Case cited and distinguished; State v. Waller, 90 Kan., 829.</p> <p>3. JURY. Right to trial by. Infringement. Nonsupport statute.</p> <p>Nor is the act unconstitutional, as denying the right to trial by jury, in that the judge of the juvenile court, on plea of guilty, and the judge of the criminal court, on plea of guilty, following a binding over, indictment, and arraignment, or on plea of not guilty, and a trial resulting in a finding of guilty, are given power to fix the amount of bond to be executed by defendant to secure payments towards the wife’s sup,. ort, as the statute makes no effort to deny a trial of the issue of the guilt or innocence of defendant by a jury, while the power to declare what shall be the appropriate punishment for an ascertained crime belongs solely to the legislature, and the assessment of punishment may be assigned to the judge. (.Post, pp. 37,38.)</p> <p>Case cited and approved: Woods v. State, 130 Tenn., 100.</p>

<p>PROM HAMILTON.</p> <p>Appeal from the Chancery Court of' Hamilton Connty to tlie Court of Civil Appeals, and by certior-ari to the Court of Civil Appeals from the Supreme Court. — W. B. Garvin, Chancellor.</p>

<p>1. ANIMALS. Constitutional law. Class legislation. Counties. Population. Stock Law.</p> <p>Priv. Acts 1911, chapter 49, sections 1, 6, enacted to prevent live stock from running at large in counties having a population of not less than 13,500 and not over 13,640, according to the federal census of 1910, and to prevent the necessity-of fencing land in counties affected, making the owner of such stock liable for all damages done to the property of other persons while running at large, giving them a lien on the stock doing the damage, and the right to impound it, and making any violation a misdemeanor punishable by fine, declaring that nothing therein should repeal the Railway Fence and Stock Law, was not partial or class legislation in violation of the Constitution, since the counties wore properly subjected to the population classification basis. (Post, pp. 50-51.)</p> <p>Acts cited and construed: Acts 1911, ch. 49, secs. 1, 6.</p> <p>Cases cited and approved: Peterson v. State, 104 .Tenn., 127; .Archibald v. Clark, 112 Tenn, 533; Murphy v. State, 114 Tenn., 531; Hall v. State, 124 Tenn., 235; Sutton v. State, 96 Tenn., 696; State v. Turnpike Co., 133 Tenn., 446; Fleming v. Memphis, 126 Tenn., 331; Malone v. Williams, 118 Tenn., 390.</p> <p>2. CONSTITUTIONAL LAW. Class legislation. Presumption of reasonableness.</p> <p>Such enactment, being under the police power of the State, was within the rule that, if any State of facts can he reasonably conceived- that will sustain such a classification, it will be assumed to have existed when it was enacted. (Post, pp. 51, 52.)</p> <p>Case cited and approved: Motlow v. State, 125 Tenn., 547.</p> <p>3. STATUTES. Title and subject matter. Constitutional provisions.</p> <p>Such act did not violate Const, art. 2, section 17, providing that an act shall embrace hut one subject expressed in the title, since the matters contained in sections 2-5, relating to liability for damages, to a lien and impounding, and to a fine on conviction, are merely incidental to the subject expressed in the title, and therefore fall within it. (Post, p. 52.)</p> <p>Constitution cited and construed: Art. 2, sec 17.</p> <p>4. CRIMINAL LAW. Judicial notice. Population of county.</p> <p>In a prosecution under such statute, the court would take judicial notice that a county fell within the population limits fixed by the act. (Post, p. 52.)</p> <p>Case cited and construed: Ferguson v. Tyler, 134 Tenn., 577.</p>

<p>1. CANCELLATION OF INSTRUMENTS. Grounds. Matter of right.</p> <p>The equitable remedy of rescission is not one enforceable as a matter of right, and the court should not award it in eases where some such element as actual fraud, accident, mistake, or insolvency does not appear, even though the circumstances are such that, were the contract still executory, the court would grant the relief. (Post, pp. 58, 59.)</p> <p>Cases cited and approved: Crampton v. McLaughlin Realty Co., 51 Wash., 525; Fountain v. Semi-Tropic, etc., Co., 99 Cal., 677. Cheney v. Biercamp, 58 Colo., 321: Tennant Land Co. v. Nordeman, 148 Ky., 361; Land Co. v. Hill, 87 Tenn., 589.</p> <p>Cases cited and distinguished: American Emigrant Co. v. Adams Co., 100 U. S., 61; Laser v. Forbes, 105 Ark., 166.</p> <p>2. CANCELLATION OF INSTRUMENTS. Rescission of executed contract. Breach of covenant.</p> <p>Where land was sold on the installment plan, the vendor giving bond to execute a deed on completion of payments, which bond contained a guaranty that the vendor would lay water mains and sewers, and the buyer completed payments and went into possession, the vendor executing a deed, from which it omitted the guaranty, having failed to lay the water mains, the buyer could not have rescission of the contract in equity, but was left to her legal remedy for damages for the breach; the contract being executed. (Post, pp. 58, 59.)</p>

<p>FROM WASHINGTON.</p> <p>Appeal from the Chancery Oonrt of Washington Connty. — Hal H. Haynes, Chancellor.</p>

<p>FROM HAMILTON.</p> <p>Appeal from the circuit court of Hamilton County. —Nathan L. Bachman, Judge.</p>

<p>FROM ROANE.</p> <p>Appeal from the Circuit Court of Roane County.— S. C. Bnown, Judge.</p>

<p>1. STATUTES. Enactment.</p> <p>Where the Senate and the House Bill are the same in their caption and body, and the House Bill has been passed and transmitted to Senate after the Senate Bill has passed its final readings, the substitution of the House Bill and its passage by the Senate constituted a valid enactment. (Post, pp. 90, 91.)</p> <p>Acts cited and construed: Acts 1915, ch. 54.</p> <p>Cases cited and approved: Webb v. Carter, 129 Tenn., 263; State ex reí. v. Pérsica, 130 Tenn., 68; Tenn. Coal, Iron & R. Co. v. Hooper, 131 Tenn., 616; Heiskell v. Knox Co., 1321 Tenn., 187.</p> <p>Case cited and distinguished: Archibald v. Clark, 112 Tenn., 532.</p> <p>2. STATUTES. Enactment. Rules of Senate.</p> <p>The Senate, having the right under Const, article 2, section 12, to make its own rules, is the judge of those rules, and all the court can do is to ascertain whether in Constitution has been complied with in the passage of an act, and cannot consider whether the rules of the Senate have been complied with. (Post, pp. 91-93.)</p> <p>Cases cited and approved: Sweitzer v. Territory of Oklahoma, 5 Okla., 299; McDonald v. State, 80 Wis., 411; In re Ryan, 80 Wis., 414; Railroad Co. v. Gill, 54 Ark., 105; United States v. Ballin, 144 U. S., 1; Hardaway v. Lilly, 48 S. W., 712; Malone' v. Williams, 118 Tenn., 438; Palmer v. Express Co., 129 Tenn., 116; State ex reí. v. Pérsica, 130 Tenn., 48; Bird v. State, 131 T,enn„ 518; Todtenhausen v. Knox Co., 132 Tenn., 169; Hamilton Nat. Bank v. Amster, 134 Tenn., 537; Wilson v.' Wilson, 134 Tenn., 697.</p> <p>Constitution cited and construed: Art. 2, sees. 12, 17.</p> <p>3. STATUTES. Construction. Meaning of words.</p> <p>The legislative intent is to be ascertained from a statute in connection with other statutes on the same subject, and not merely from a strict and accurate definition of the words alone. (Post, pp. 93-97.)</p> <p>Cases cited and approved: Kelly v. State, 123 Tenn., 516; Mot-low v. State, 125 Tenn. 560; Tenn. Club of Memphis v. Dwyer, 79 Tenn., 452; Hermitage Club v. Shelton, 104 Tenn., 101; Moriarty v. State, 122 Tenn., 440; Tenn. ex rel. v. Mountain City Club, 188 S. W., 579; State v. Fickle, 71 Tenn. 79; Gavin v. State, 81 Tenn., 162; Railroad v. Crider, 91 Tenn., 489; State v. Brown, IOS' Tenn., 449; State v. McMinnville, 106 Tenn., 384; State v. Hoskins, 106 Tenn., 430; Hamilton Nat. Bank v. Amster, 134 Tenn., 537; Acklen v. Thompson, 122 Tenn., 43; State v. Whitworth, 76 Tenn., 594; Truss v. State, 81 Tenn., 311; State v. Brown, 103 Tenn. 449; Condon v. Ma-loney, 108 Tenn., 82; Arbuckle v. McCutcheon, 111 Tenn., 514; Memphis v. Hastings, 113 Tenn., 142; Rhinehart v. State, 121 Tenn., 420; Ransom v. Rutherford Co., Í23 Tenn., 1; State ex rel. v. Schlitz Brewing Co., 104 Tenn., 715; Railroad v. Byrne, 119 Tenn., 278; State v. Hayes, 116 Tenn., 40; Saunders v. Savage, 108 Tenn., 340; Ledgerwood v. Pitts, 122 Tenn., 570</p> <p>Cases cited and distinguished: Frazer v. Railroad, 88 Tenn., 138; Cannon v. Mathes, 55 Tenn., 504.</p> <p>4. STATUTES. Subject ahd title. Intoxicating Liquors.</p> <p>Const, article 2, section 17, providing that no bill shall become a law which embraces more than one subject expressed in the title was violated by Laws 1915, chapter 54, entitled “An act to prohibit persons, clubs, . . . from storing, keeping, distributing or in any way disposing of liquor containing more than one-half. of one per cent, alcohol, on the premises of any . . . club,” which, in view of the history of legislation, was intended to reach social clubs, section 1 of which made it unlawful for any club to keep any clubhouse in which any liquor, containing more than one-half of one per cent. alcohoi, is received or kept by tbe person in his own name or otherwise," or by the club for the purpose of use, or sale among its members, forbidding any club to use or sell any such liquors so received and kept, sine-: the clauses forbidding the maintenance of any “other place in which any liquor . . is received or kept by the person in his own name or otherwise . . . for the purpose of use, gift, barter, or sale as a beverage,” and that providing “and no person. . ■ . within the state shall use, barter, sell or give away or assist in bartering, or assist in . . . selling . . . any liquor containing more than one-half of one per cent, alcohol so received or kept,” were not expressed in the title. (Post, pp. 97-100.)</p> <p>Constitution cited and construed: Art. 2, sec. 17.</p> <p>5 CONSTITUTIONAL LAW. Party entitled to raise question. Subject and title. Interest.</p> <p>While no one' has the right to attack a particular provision in' a statute as unconstitutional unless it affects him personally, or unless, if the attack be sustained, the effect would be to render the entire act void, yet if the effect of a successful attack for violation of Const, article 2, section 17, providing that no' bill shall become a law which embraces more than one subject expressed in its title, is to render the entire act void, any one against whom such an act is sought to be enforced may attack it on that ground, and, if successful, will be relieve'd of whatever burden the statute in any of its parts purports to impose on him. (Post, pp. 100, 101.)</p> <p>Cases cited and approved: Patton v. Chattanooga, 108 Tenn., 230; Richardson v. Young, 122 Tenn., 471.</p> <p>6. STATUTES. Subject and title. Partial Invalidity.</p> <p>The subject-matter of Laws 191'5, chapter 54, section, 1, forbidding the maintenance of any other place than clubs,' etc., in which liquor is received or kept by a person in his own name or otherwise for use or sale, not being within its title, as required by Const, article 2, section 17, could not be cut out, where it and the other subjects of the act were interwoven so that the portion of the act relating to clubs must also fall. (Post, p. 101.)</p> <p>Case cited and approved: State ex rel. v. Trewhitt, 113 Tenn., 561.</p>

<p>1. INTOXICATING LIQUORS. “Public nuisance." Sale. Distribution by clubs.</p> <p>Under Laws 1913, Second Extra Sess. chapter 2, section 1, providing “that the conducting, maintaining, carrying on or engaging in the sale oí intoxicating liquors, . . . and all means, appliances, fixtures,” etc., are declared public nuisances, an incorporated social club which had been in existence for twenty-five years, with a limited membership, dispensed intoxicating beverages to its members at cost of materials and service, without overhead charges,' as a mere incident to the main purpose of the club, the social intercourse of its members, no person not a member of the club, being permitted to obtain anything from the club at his own expense, was not guilty of conducting a nuisance, the sale of intoxicating liquors as a.business and for profit, being the nuisance contemplated by the legislature. {Post, pp. 109-113.)</p> <p>Acts cited and construed: Acts 1913, ch. 2, sec. 1. Acts 1899; ch. 161, sec 1.</p> <p>Case cited and approved: Hermitage Club v. Shelton, 104 Tenn., 101.</p> <p>Cases cited and distinguished: Tennessee Club of Memphis v. Dwyer, 79 Tenn., 452; Moriarty v. State, 122 Tenn., 440.</p> <p>2. COURTS. Previous decisions as precedents. Decisions of same court.</p> <p>Where cases, which have long been among the published decisions of the State, define privileges of the people in respect to personal conduct, involving the difference between crime and freedom from crime in respect to what constitutes the sale of intoxicating liquors, made a nuisance, and the people of the State have acted in view of them, they will not be disregarded or reconsidered. (Post, pp. 113-116.)</p> <p>Cases cited and approved: People v. Adelphi, 149 N. Y., 5; State v. St. Louis Club, 125 Mo., S'08; Commonwealth v. Pom-pbret, 137 Mass., 564; Seim v. State, 55 Md., 566; Piedmont Club v. Commonwealth, 87 Va., 541; State v. McMaster, 35 S. C., 1; Barden v. Montana Club, 10 Mont., S'30; Koenig v. State, 33 Tex. Cr. R., 367; Klein v. Livingston Club, 177 Pa., 224; State v. Austin Club, 89 Tex., 20; Winters v. State, 33 Tex. Cr. R„ 395; Ward v. State, 56 Tex. Cr. R., 362; Graff v. Evans, 8 Q. B, Div., 373.</p> <p>3. INTOXICATING LIQUORS. Prosecution. Issues. Whether distributing a business.</p> <p>The matter of profit or nonprofit is not an immaterial circumstance where the point to be determined is whether a business is being carried on in the distribution of intoxicating liquors. (Post, pp. 113-116.)</p> <p>4. INTOXICATING LIQUORS. Sales. Distribution by clubs.</p> <p>The mere fact that an incorporated social club is a legal entity, distinct from its members, will not operate to make a distribution of intoxicating liquors to the members by the club a sale, where the corporation had no stock and not organized for profit, but the corporate form was used merely as a means of administering the common property among the members in a reasonable and equitable manner. (Post, pp. 113-116.)</p> <p>5. CRIMINAL LAW. Evidence. Judicial notice.</p> <p>It is a matter of common knowledge, of • which the supreme court may take judicial notice, that since the legislative enactment of various statutes extending from time to time the territorial scope within which intoxicating liquors cannot be legally sold, clubs have sprung up in great numbers in different localities, and obtained charters, whose apparent purpose is to evade, if possible, under the forms of law the effect of these statutes. (Post, pp. 116, 117.)</p>

<p>PROM HAMILTON.</p> <p>Appeal from the Chancery Court of Hamilton County. — W. B. Garvin, Chancellor.</p>

<p>CORPORATIONS. Dividends. Persons entitled.</p> <p>Where directors at an annual meeting declared and set apart a dividend to the stockholders, to be held in the treasury and paid out at a later date on the order of the board, the declaration of the dividend had the effect to segregate the amount from the corporation’s assets, leaving it disassociated from the capital stock, the law implying a promise at the time , of its declaration to pay to the then stockholders their proportionate amounts, so that the dividend did not pass as an incident to the stock certificates transferred before the order 'of the board for its payment, but as between transferor and transferree, remanded the property of the transferors.</p> <p>Cases cited and approved: Wheeler v. Northwestern Sleigh Co. (C. C.), 39 Fed., 347; Hopper v. Sage, 112 N. Y., 530; Bright v. Lord, 51 Ind., 272.</p> <p>Cases cited and distinguished: Beers v. Bridgeport Spring Co., 42 Conn., 17; N. W. Marble & Tile Co. v. Carlson, 116 Minn. 438.</p>

<p>LICENSES. Operation of motorcycle. Registration. Sufficiency of indictment. .</p> <p>Under Acts 1915, chapter 8, section 1, providing that before the owner of any motorcycle shall operate it in the State, he shall register it with the secretary of State, and receive a certificate of registration, and by section 8, making a violation thereof á misdemeanor, an indictment, charging that defendant unlawfully operated a motorcycle not properly registered, without charging that he < operated upon a street, etc., was sufficient, as it is a violation of the statute to operate a motorcycle at all until duly registered.</p> <p>Acts cited and construed: Acts 1915; ch. 8, sec. 1.</p>

<p>MUNICIPAL CORPORATIONS. Defects In streets. Notice. Statute.</p> <p>Acts 1913, chapter 55, making written notice to the mayor' of injuries on account of the negligent condition of a street a condition precedent to suit, and that failure to give notice is a valid defense, has reference to injuries by reason of defects upon a passway, incapacitating it partially or wholly for service, and did not require notice of injury to plaintiff’s property, resulting from an overflow of water thereon from an insufficient drain in a public street.</p> <p>Acts cited and construed: Acts 1913, ch. 56.</p> <p>Cases cited and approved: Pye v. Mankato, 38 Minn., 536; Moran v. St. Paul, 54 Minn., 279; Mclntee v. Middletown, 80 App. Div., 434; Giurieevic v. Tacoma,.57 Wash., 329.</p>

<p>PROM HAMILTON.</p> <p>Appeal from Hamilton Circuit Court. — T. M. McConnell-, Chancellor.</p>

<p>T STATUTES. Time of taking effect. Repealing act.</p> <p>Pub. Acts 1915, chapter 3, expressly repealing Acts 1897, chapter 125, relative to State penitentiaries, hut by its terms not to be in effect until March 19, 1915, became effective as a distinct act of the legislature on March 19, 1915, from that date forward suspending the act of 1897. (.Post, pp. 161-164.)</p> <p>Acts cited and construed: Acts 1897, ch. 125; .Acts 1915, ch. 3.</p> <p>Case citecl and approved: Van Dyke v. Thompson, 189 Sf W., 62.</p> <p>2. PRISONS. Officers. Repeal without saving clause. Effect.</p> <p>When an act of the legislature is repealed without a saving clause, it is considered, except as to transactions, passed and closed, as though it had never existed, so that a prison chaplain was not entitled to his office after the repeal of the act pursuant to which he had been appointed and under which he held office. (Post, pp. 161-164.)</p> <p>3. CONSTITUTIONAL LAW. Prisons. Legislating out of office. Statutes.</p> <p>Pub. Acts 1915, chapters 3 and 20, repealing Acts 1897, chapter 125, relative to the State penitentiary, and placing the penal, reformatory, and charitable institutions of the State under the management of a state board of constrol is not violative of Constitution article 1, section 8, providing that no man shall be deprived of his life, liberty, or property but by the judgment of his peers or the law. of the land, or Constitution United States Amendment 14, section 1, prohibiting abridgement of privileges of any citizen of the United States, etc., as legislating out of office the chaplain for a State penitentiary appointed by virtue of Acts 1897, chapter 125, sections 5 and 6, since the Legislature, in the public interest, may abolish an office. (Post, pp. 161-164.)</p>

<p>FROM ROANE.</p> <p>Appeal from the Circuit Court of Roane County. —O. T. Tindell, Special Judge.</p>

<p>FROM BRADLEY.</p> <p>Appeal from the Chancery Court of Bradley County. — F. H. MeRCee, Chancellor.</p>

<p>FROM LOUDEN.</p> <p>Appeal from the Chancery Court of Loudon County.— Hugh Gr. Kyle, Chancellor.</p>

<p>FROM RHEA.</p> <p>Appeal from the Circuit Court of Rhea County.— Feare: L. Lynch, Judge.</p>

<p>1. HUSBAND AND WIFE. Conveyance to husband and wife. Title. Entireties.</p> <p>.Under a conveyance of land to husband and wife, they take by the entireties, nothing else appearing. (Post, pp. 187, 188.)</p> <p>Cases cited and approved: Taul v. Campbell, 15 Tenn., 319; Fowlkes v. Wagoner, 46 S. W., 586.</p> <p>2. HUSBAND AND WIFE. Conveyance to husband and wife. “Bodily heirs.”</p> <p>A conveyance to husband and wife reciting that, if the husband ■ died without bodily heirs, the wife should take by survivorship, and if she died without issue, he should take an undivided moiety, conveyed to her an undivided half in fee absolutely and to the husband a fee subject to a condition in her favor in case he should die without children; the term “bodily heirs” meaning children as used. (Post, pp. 188-191.)</p> <p>3. HUSBAND AND WIFE. Conveyance by wife for husband. Effect of agreement by third person to reconvey.</p> <p>Conveyance by a wife of land in her own right to a third person for reconveyance to herself and husband was not unlawful, although the deed recited the proposed reconveyance. (Post, pp. 191-193.)</p> <p>Cases cited and approved: Campbell v. Taul, 11 Tenn., 548; Taul v. Campbell, 15 Tenn., 319.</p> <p>4. HUSBAND AND WIFE. Wife’s general estate in land. Con-for security of husband’s debt.</p> <p>for the security of her husband’s debts, a wife may convey, in a trust deed carrying a power of sale, all of her general estate in the land. (Post, pp. 191-193.)</p> <p>Cases cited and approved: Voorhies v. Cranberry, 64 Tenn., 704; McFerrin v. White, 46 Tenn., 500; Thompson v. Thompson, 54 S. W., 145; Woodfin v. Marks, 104 Tenn., 512; Mee v. Mee, 113 Tenn., 453; Insurance Co. v. Waller, 116 Tenn., 1; Pritchard v. Wallace, 36 Tenn., 405; Hardison v. Billington, 82 Tenn., 346.</p> <p>5. HUSBAND AND WIFE. Conveyance by wife for husband.</p> <p>A married woman, by deed with privy examination and joined by ber husband, may convey her land to a third person, and reconveyance by that person to her husband is a valid transaction; fraud being out of the way. (Post, pp. 191-193.)</p> <p>6. TRUSTS. Oral trust. Statute of frauds.</p> <p>A parol trust to reconvey, attached to a conveyance absolute on its face is valid; the seventh section of the English statute of frauds not obtaining in Tennessee. (Post, pp. 191-193.)</p> <p>7. HUSBAND AND WIFE. Decree.</p> <p>Where, before the married woman’s act of 1913, a husband and wife sold property as to which they were in dispute as to their respective proportions of ownership, a decree that each should have half the money according to an alleged agreement between them was not erroneous in any respect open to complaint by the wife, since, if she had consented to the sale of her land without such agreement, the husband would have taken the whole. (Post, pp. 191-193.)</p>

<p>1. ANIMALS. Constitutional law. Statutes. Running at large. Classification. Special laws.</p> <p>Acts 1903, chapter 177, and Priv. Acts, 1911, chapter 122, prohibiting the allowing of hogs, sheep, or goats to run at large in any county of a populaton between 14,200 and 15,000, do not contravene Constitution, article 1, section 8, prohibiting the deprivation of life, liberty, or property, except by judgment of peers or law of the land, and article 11, section 8, prohibiting special laws, nor the due process of law clause of the Federal Constitution (Const. Amend. 5), the population classification being a valid one in the exercise of police power, even, though the acts are thereby limited in application to a single county. (Post, pp. 195-197.)</p> <p>Acts cited and construed: Acts 1903, ch. 177; Acts 1911, ch. 122.</p> <p>Cases cited and approved: Thomas v. State, 188 S. W., 617; Redistricting Cases, 111 Tenn., 234; State v. Turnpike Co., 133 Tenn., 446.</p> <p>Constitution cited and construed: Art. 1, sec. 8; Art. 11, sec. 8.</p> <p>2. STATUTES. Classification.</p> <p>Such statutes are • not unconstitutional ás making an unreasonable classification in prohibiting hogs, sheep, and goats from being allowed to run at large, and making no such provision as to horses and cattle, the classification being on reasonable grounds, in that the one can be more easily fenced against than the other. (Post, p. T97.)</p> <p>Case cited and approved: City of Memphis v. State ex rel., 133 Tenn., 83.</p>

<p>PROM PORK.</p> <p>Appeal from the Chancery Court of Polk County to the Court of Civil Appeals, and by certiorari to the Court of Civil Appeals from the Supreme Court. —Foss H. Merge®, Chancellor.</p>

<p>PROM WASHINGTON.</p> <p>Appeal from the Chancery Court of Washington County to the Court of Civil Appeals, and by certio-rari to the Court of Civil' Appeals from the Supreme Court — C. J. St. John, Special Chancellor.</p>

<p>INDICTMENT AND INFORMATION. Negativing exception of statute. Carrying pistol.</p> <p>Under the statute providing that it shall not he lawful for any person to carry publicly or privately any kind of pistol, except the army or navy pistol, which shall he carried openly in the hand, an indictment charging that defendant, on a specified date, unlawfully carried “a pistol for the purpose of going and being armed, against the peace and dignity of the State,” was insufficient for its omission to charge that the weapon was not an army or navy pistol carried openly in the hand.</p> <p>Cases cited and approved: Steel v. Smith, 2 Bar & Ad., 94; Jones v. Axon, 1 Ld. Raymond, 120; State v. Jones, 10 Tenn., 22; United States v. Cooks, 17 Wall., 168; Sword v. State, 24 Tenn., 102; Martin v. State, 25 Tenn., 207; Freeman v. State, 118 Tenn., 95; State v. Jackson, 69 Tenn., 680; State v. Staley, 71 Tenn., 565.</p> <p>Cases cited and distinguished: Matthews v. State, 10 Tenn., 233; Porter v. State, 66 Tenn., 106; Villines v. State, 96 Tenn., 141.</p>

<p>STATUTES. Title and subject. Constitutional provisions.</p> <p>Acts 1909, chapter 202, entitled an act to make it unlawful for any person to draw a check upon any other person, etc., where the drawer of such check has not had an account or credit with the person, etc., upon whom it is drawn, within sixty days from the date it is drawn, and in the body thereof making that a misdemeanor, and also making it a misdemeanor for any person to draw such check knowing that there are no funds to meet it, and that it will not he honored, only one of which subjects is indicated in the title, is unconstitutional as violative of Constitution, article 2, section 17.</p> <p>Acts cited and construed: Acts 1909, ch. 202.</p> <p>Case cited and approved: State v. Cumberland Club, 188 S. W., 583.</p> <p>Constitution cited and construed: Art. 2, sec. 17.</p>

<p>INSURANCE. Fraternal benefit insurance. Forfeiture of certificate.</p> <p>Under Acts 1905, chapter 480, providing that the Constitution and laws of a fraternal association may provide that no subordinate body, officer, or member may waive any provision of its laws and constitution and the same shall be binding on the association, and every member, where the constitution and laws of the defendant fraternal benefit association provided required notice of a change of occupation within thirty days the member should be suspended and his certificate null and void, and that the cleric of camp shall not, by acts, representations, or waivers, or by vote of his camp, have authority not delegated to him, and that such official has no authority to waive conditions of beneficiary certificates or provisions of the constitution or laws, where deceased changed his occupation from farmer to locomotive fireman without • notice until six months after the lapse of the thirty-day period, defendant was not bound by any act of estoppel or waiver of the clerk of the local camp in receiving the notice, without knowledge or acquiescence on the part of its sovereign officials.</p> <p>Acts cited and construed: Acts 1905, ch. 480, sec. 24.</p> <p>Cases cited and approved: Brittenham v. W. O. W. (Mo. App.), 167 S. W., 587; Jones v. Modern Brotherhood of America, 153 Wis., 225; Foresters v. Cunningham, 127 Tenn., 521.</p> <p>Case cited and distinguished: Modern Woodmen of America v. Tevis, 117 Fed., 369.</p>

<p>1. CONSTITUTIONAL LAW. Licenses. Due Process of law.</p> <p>Pub. Acts 1915, chapter 101, section 4, imposing a privilege tax on shoe-shining parlors, and containing a proviso exempting barber shops where shoe shining is carried oh from the provision, is not violative of Constitution, article 1, section 8, providing that no man shall be in any manner deprived of ' property but by law of the land. {Post, pp. 239-241.)</p> <p>Acts cited and construed: Acts 1915, ch. 101, sec. 4.</p> <p>Cases cited' and approved: Demoville & Co. v. Davids.on County, 87 Tenn., 214; Stratton Claimants v. Morris Claimants, 89 Tenn., 497.</p> <p>Constitution cited and construed: Art. 1, sec. 8.1</p> <p>2. CONSTITUTIONAL LAW. Privileges and immunities.</p> <p>Nor is the act violative of Constitution article 11, section 8, providing that the legislature shall have no power to pass laws granting any individual or individuals immunities or exemptions, not extended to any other who may be able to bring himself within its provisions. (Post, pp. 239-241.)</p> <p>3. EVIDENCE. Judicial notice. Matters of common knowledge.</p> <p>Barber shops and shoe-shinin'g parlors are well-known businesses, of the conduct of which the court may take judicial cognizance. (Post, pp. 239-241.)</p>

<p>1. MUNICIPAL CORPORATIONS. Improvements. Street assessments. Liability of county property. Statute.</p> <p>Under Priv. Acts 1911, chapter 501, section 1, as amended by Priv. Acts 1913, chapter 2, providing for the improvement of the streets in certain cities upon petition by the owners of frontage and action by the legislative body of the city, and other sections providing for the proportion of the expense which shall constitute a lien upon a lot and he collected as taxes, and not specially exempting county property, the property of the county, which is an arm of the State government, was not liable to assessment for the improvement of the street on which it abuts, since such power must be specially conferred. (Post, pp. 245-248.)</p> <p>Acts cited and construed: Acts 1911, ch. 501, sec. 1; Acts 1913, ch. 2.</p> <p>Cases cited and approved: Clinton v. Henry County, 115 Mo., 657; Board of Improvement v. Little Bock School District, 56 Ark., 354; Nashville v. Smith, 86 Tenn., 213; Smith v. Nashville, 88 Tenn., 464; Bank v. Memphis, 116 Tenn., 641.</p> <p>Cases cited and distinguished: Keith v. Funding Board, 127 Tenn., 441; State v. Crutcher’s Adm’r, 32 Tenn., 505; United States v. Hoar, 2 Mason, 311; Jones v. Talham, 20 Pa., 398; Directors of Poor v. School Directors, 42 Pa., 21; City of Pittsburg v. Sterrett Subdistrict School, 204 Pa., 635.</p> <p>2. MUNICIPAL CORPORATIONS. Special assessments. Exemptions. Statute. ,</p> <p>Under Constitution, article 2, section 28, authorizing the legislature to exempt property held by the State, county, cities, or towns', etc., from general taxation .although it is customary in acts governing general taxation, as distinguished from special assessments, to make the various exceptions mentioned in the Constitution, special assessments would not be affected by such language in tbe general assessment acts, and failure to make such public property liable for tbe special assessments automatically operates as an exemption. (Post, pp. 248, 249.)</p> <p>3. MUNICIPAL CORPORATIONS. Statute empowering assessment. Constitutionality. Discriminations.</p> <p>Under Constitution, article 11, section 8, forbidding discriminatory legislation, and Private Acts 1911, chapter 501, section 1, as amended by Private Acts 1913, chapter 2, providing for certain street improvements and assessments arid making tbe city liable for any improvements made in front of exempt property, although the State has power to subject the county’s property to special assessment, and these assessments are based upon the conclusive presumption of law that the property is benefited by the improvements • made, failure to subject county property to the special assessment for improvement purposes is not a constitutional discrimination. (Post, pp. 249-252.)</p> <p>Cases cited and approved: Arnold v. Knoxville, 115 Tenn., 195; State ex rel. v. Powers, 124 Tenn., 553.</p>

<p>LICENSES. Municipal corporations. Extraterritorial power.</p> <p>Acts 1915, chapter 101, providing for certain privilege taxes on oil warehouses used for the purpose of selling or distributing oil and authorizing each county and municipality in the State to levy a privilege tax on the vocations mentioned, being a purely revenue statute, and not conferring in express terms upon any municipality the power of extraterritorial taxation, did not authorize the city of Knoxville to impose a privilege tax on complainant oil corporation on the storage of its products, and other business done, without the city limits.</p> <p>Act cited and construed: Acts 1915, ch. 101.</p> <p>Case cited and approved: Prescott v. Town of Lennox, 100 Tenn., 591.</p> <p>Case cited and distinguished: Gass v. Corporation of Greenville, 36 Tenn., 62.</p>

<p>PROM KNOX.</p> <p>Appeal from the Chancery Court of Knox County. —Will D. Weight, Chancellor.</p>

<p>FROM HAMBLEN.</p> <p>Appeal from the Circuit Court of Hamblen County to the Court of Civil Appeals, and by certiorari to the Court of Civil Appeals from the Supreme Court.</p> <p>Hon. G. McHenderson, Judge.</p>

<p>NEGLIGENCE. Children. Age at which chargeable with contributory negligence. Presumption. Question for jury.</p> <p>There is a presumption, nonconclusive and rebuttable in character, that a child under seven years of age is not guilty of contributory negligence, for lack of capacity, and, where there is opposing evidence, the capacity of the infant is an issue of fact for the jury. u</p> <p>Cases cited and approved: Westbrook v. Railroad, 66 Miss., 560; Baker v. Railroad, 17 Ann. Cas., 353; Baker v. Public Service R. Co., 79 N. J. Law, 249; Purcell v. Boston Elevated R. Co., 211 Mass., 79; Ramberger v. Citizens’ St. R. Co., 95 Tenn., IS.</p>

<p>1. APPEAL AND ERROR. Insufficiency of assignments of error. Judgment. Effect.</p> <p>When the court of civil appeals adjudged that the assignments of error did not comply with the rules of the court, all rights of appellant therein to have the case tried by that court were ended. (Post, pp. 280, 281.)</p> <p>2. CERTIORARI. Petition to revise action of court of civil appeals. Showing of merits.</p> <p>If the action of the court of civil appeals, in adjudging that assignments of error did not comply with its rules, is desired to be reviewed by the supreme court, the petition for certiorari must show, not only that the court of civil appeals misconstrued and misapplied its own rules, and that the assignments of error were sufficient, but must also show merits. (Post, pp. 280, 281.)</p> <p>3. CERTIORARI. Review of decision of court of civil appeals. Assignments of error to chancellor.</p> <p>Assignments of error must accompany petition to the supreme court for writ of certiorari to review the action of the court of civil appeals, and must be made to the decree of the court of civil appeals, and not to the decree of the chancellor. (Post, p. 281.)</p> <p>Case cited and approved: Nashville v. Patton, 125 Tenn., 361.</p>

<p>FROM HAMILTON.</p> <p>Appeal from the Circuit Court of Hamilton County. —Nathan L. Bachman, Judge.</p>

<p>SALES. Warranty. Seed. Damages.</p> <p>For the breach of an express warranty that seed is true to name, where the seller knows the use for which it is bought and the buyer plants it in ignorance of its true character, the meas-use of recoverable damages is the value of a crop had the seed been as warranted, such as would ordinarily have been produced that year, less the value of the crop actually raised.</p> <p>Cases cited and approved: Shaw v. Smith, 45 Kan., 334; Butler v. Moore, 68 Ga., -780; Reiger v. Worth, 127 N. C. 230; Vaughan’s Seed Store v. Stringfellow, 56 Fla., 708; White v. Miller, 71 N. Y., 118; Hurley v. Buchi, 78 Tenn., 346; Wolcott v. Mount, 38 N. J. Law, 496; Van Wyck v. Allen, 69 N. Y., 61; Fuhrman v. Interior Warehouse Co., 64 Wash., 159; Edgar v. Joseph Breck Corp., 172 Mass., 581.</p> <p>Case cited and distinguished: Wolcott v. Mount, 36 N. J. Law, 262.</p>

<p>LARCENY. Elements. Property attached to “freehold.”</p> <p>A railroad track on a right of way owned hy a street railway company being a part of the “freehold,” under Shannon’s Code, section 6496, subsection 6, making it a misdemeanor to sever and carry away from the freehold of another anything attached thereto under such circumstances as would render the trespass larceny, if the thing severed and carried away were personal property, where accused cut wire attached to rails so that it had to be cut to be removed, and carried it away, he was not guilty of larceny, as the entire act of which the severance is a part is declared by the statute to he trespass, and distinguished from larceny.</p> <p>Acts cited and construed: Acts 1889, ch. 161.</p> <p>Cases cited and approved: Hickman v. Booth, 131 Tenn., 32; Union Bank v. Wolf, 114 Tenn., 255; Johnson v. Patterson, 81 Tenn., 626; De Graffenieid v. Scruggs, 23 Tenn., 451; Bell v. State, 63 Tenn., 426; Bradford v. State, 74 Tenn., 634; State v. Donohue, 75 Or., 418;</p> <p>Code cited and construed: Sec. 6496 (S.).</p>

<p>1. RAILROADS. Covenant as to use of property. Action for breach. Pleading.</p> <p>A bill by the grantor against the successors of two railway companies, grantees, showing the conveyance was for $1 cash “with the obligation to erect, maintain, and operate thereon a passenger depot,” which was not done, charging this was a covenant running with the land, for breach of which defendants were liable, and praying in the alternative, in case the court should be of opinion that the stipulation was a condition subsequent instead of a covenant, for recovery of the land for condition broken, was properly treated by complainant as one for breach of covenant, and not one for recovery of land for condition broken. (Post, p. 305.)</p> <p>2. RAILROADS. Covenant as to use of property. To erect railway station.</p> <p>Such a deed created a covenant, and not a condition subsequent. (Post, pp. 305, 306.)</p> <p>Case cited and approved: Land Co. v. Interurhan Co., 186 S. W., 454.</p> <p>3. RAILROADS. Covenant as to use of property to erect railway station.</p> <p>Such deed, imposing the obligation upon the grantees and “their respective successors and assigns forever” was a covenant running with the land; it not being necessary that the grantees sign such a deed. (Post, pp. 306, 307.)</p> <p>Cases cited and approved: Bream v. Dickerson, 21 Tenn., 126; Brooks v. Smith, 1 Shannon’s Cases, 158; Cicalla v. Miller, 105 Tenn., 255; Doty v. Railroad, 103 Tenn., 564; Midland Railroad Co. v. Fisher, 125 Ind., 19.</p> <p>4. RAILROADS. Covenant as to use of property. Persons liable. Assignee not claiming under deed.</p> <p>But an assignee of a grantee of such deed was not liable on the covenant therein where it had never taken possession of nor used the land nor exercised any ownership over it; the benefit and burden of such a deed being reciprocal. (Post, p. 307.)</p> <p>5. EASEMENTS. Assignee claiming under deed.</p> <p>A purchaser of an easement created by a deed cannot be permitted to enjoy the easement and refuse to perform the undertaking which was the consideration of the easement. (Post, pp. 307-309.)</p> <p>Cases cited and approved: Midland Railroad v. Fisher, 125 Ind., 19; Georgia Southern Railroad v. Reeves, 64 Ga., 492; Atlanta, K. & N. R. Co. v. McKinney, 124 Ga., 929.</p> <p>Case cited and distinguished: Doty v. Railroad, 103 Tenn., 567.</p> <p>6. LIMITATION OF ACTIONS. One-year statute of limitations. Action for breach of covenant.</p> <p>The one-year statute of limitations, protecting the occupation of land for works of internal improvement, does not apply to a suit for breach of a convenant running with land. (Post, pp. 309, 310.)</p> <p>Cases cited and approved: Midland Railway Co. v. Fisher, 125 Ind. 19; Atlanta, K. & N. R. Co. v. McKinney, 124 Ga., 929; Shaber v. St. Paul Water Co., 30 Minn., 184; Teter v. Glenn, 9 Rich. (S. C.), 374.</p> <p>7. LIMITATION OF ACTIONS. Covenants. Continuing obligation.</p> <p>Although the initial breach of a covenant “to erect, maintain and operate” a passenger station on a lot conveyed has occurred over six years before suit was brought, yet, if such breach continues, the right to sue therefor is not barred by the .six years statute of limitations of suits for breach of covenant, but damages sustained from such continued breach within six years of the date of suit are recoverable; the obligation being continuous. (Post pp. '309, 310.)</p> <p>8. COVENANTS. Actions for breach. Pleading. Interest of Complainant.</p> <p>In suit by grantor and others for continuing breach of continuing covenant running with land, where in the bill there was a general expression that one of the other cocomplainants had succeeded to the rights and property of the grantor, but no facts as to the disposition of the rights and properties of the grantor, were set out nor the time ,of such disposition, and it did not appear that the grantor was not a going corporation, the bill was not demurrable as showing that the grantor could not sue because it had parted with its right in the land, and that its assignees were not entitled to sue on the covenant, since, from all that appeared, the assignees may have acquired their rights within six years prior to suit. (Post, pp. 310-313.)</p>

<p>FROM GRAINGER</p> <p>Appeal from the Circuit Court of Grainger County to the Court of Civil Appeals, and by certiorari to the Court of Civil Appeals from the. Supreme Court. —A. M. Paine, Judge.</p>

<p>1. COSTS. Judgment against successful party. Motion.</p> <p>Under Shannon’s Code, sections 4945, 4946, providing that all costs accrued at the instance of the successful party, which cannot be collected out of the other party, may be recovered, on motion, by the person entitled to them, against the successful party, and requiring five days’ written notice of the motion to be given to defendant in the motion, such a motion must be made in the particular court in which the costs accrued, and in which the suit was filed wherein the costs sued for arose. (Post, pp. 323, 324.)</p> <p>Cases cited and approved: Stuart v. McCuistion, 48 Tenn., 427; Lefeber v. Railroad, 92 Tenn., 165.</p> <p>Code cited and construed: Secs. 4995, 4946 (S.).</p> <p>2. COSTS. Judgment over on motion.</p> <p>Under such statutes, judgments upon motions for judgment over for costs must have all the requisites of other judgments by motion, and are based upon the facts shown by the documents and records filed in the causes in which the costs accrued, the issue of an execution against defeated party, a sufficient return thereon showing search and want of property, and the right of applicant to such judgment over. (Post,pp., 323, 324.)</p>

<p>FROM BRADLEY.</p> <p>Appeal from the Chancery Court of Bradley County to the Court of Civil Appeals, and hy certior-ari to the Court of Civil Appeals from the Supreme Court. — Foss H. Meeceb, Chancellor.</p>

<p>1. APPEAL AND ERROR. Party entitled to appeal. Statute. “Appeal.” “Appellant?”</p> <p>Shannon’s Code, sections 4851, 4852, provides that where a motion for a new trial is granted, either party may except and reduce to writing the reasons offered for the new trial, together with the substance of the evidence in the case and the decision on the motion, and take a hill of exceptions, and that appellant may assign for error that the court below improperly granted or .refused a new trial therein. Held that the word “appellant” is not to be given a narrow meaning but includes one who sues out writ of error; the word “appeal” designating generally any method provided by statute .for the removal of a case from an inferior to a higher court for review including a writ of error. (Post, pp. 329-331.)</p> <p>Acts cited and construed: Acts 1875, ch. 106.</p> <p>Cases cited and approved: Bank & Trust Co. v. Walker, 128 Tenn., 22; Barnes v. Noel, 131 Temí., 126.</p> <p>Code cited and construed: Secs. 4851, 4852 (S.).</p> <p>2. APPEAL AND ERROR. Right to appeal. Party aggrieved. Statute.</p> <p>It could not be said that plaintiff was not aggrieved or prejudiced by an order setting aside a verdict in his favor because he recovered a verdict for a greater amount in a second trial, since he was aggrieved if there was reversible error in the second trial, and there was no error in the first trial. (Post, pp. 331, 332.)</p> <p>Case cited and approved: Chesapeake, etc., R. Co. v. Higgins, 85 Tenn., 620.</p>

<p>1. CRIMINAL LAW. Appeal. Reversal. Error in sentence of confinement.</p> <p>Error in the trial court’s judgment as to period of confinement of accused may he corrected by the appellate court without reversal. (Post, p. 337.)</p> <p>Case cited and approved: Cowan v. State, 117 Tenn., 247.</p> <p>2. CRIMINAL LAW. Appeal. Record. Bill'of exceptions.</p> <p>Before error can be assigned upon the charge of the trial judge, the entire charge must be contained in the bill of exceptions, or the bill of exceptions must show affirmatively that the portion quoted is all that the trial judge said on the subject. (Post, pp. 337, 338.)</p> <p>Case cited and approved: Holder v. State, 119 Tenn., 178.</p> <p>3. ARSON. Elements. Burning.</p> <p>Under Shannon’s Code, sections 6529-6531, as to arson and maliciously setting fire to buildings; it is sufficient that accused set fire to a building willfully and maliciously, although the building was not thereby destroyed. (Post, pp. 338, 339.)</p> <p>Code cited and construed: Secs. 6529-6531 (S.).</p> <p>4. ARSON. Elements. Intent.</p> <p>Under these statutes, a particular intent, or malice against a particular person or thing, is not essential; it being sufficient to show that accused was actuated by malicious purpose, and that he set fire to a building willfully rather than negligently or accidentally. (Post, p. 339.)</p> <p>5. ARSON. Burning.</p> <p>Where a prisoner in a concrete and brick calaboose set fire to the door, which was the only combustible part of the building, he was guilty under these statutes; it being immaterial that the balance of the building was composed of fireproof material if the door- would burn. (Post, pp., 339, 340.)</p> <p>6. ARSON. Elements. Burning.</p> <p>Under these statutes it is sufficient to complete the offense if-a building is so set on fire that the nature of the fiber of the combustible to which fire is set is changed or charred. (Post, p. 340.)</p> <p>Case cited and approved: Benbow v. State, 128 Ala., 1.</p>

<p>MASTER AND SERVANT. Injuries to servant. Assumption of risk.</p> <p>Where both the servant and master knew of the specific defect in a pulley which was pointed out by the servant in a complaint made to the master that it was dangerous, although the servant did not then appreciate that the danger would or might come in the particular form it afterward did, the promise of the master to repair suspended the servant’s assumption of the risk and rendered the master liable for a resulting injury. '</p> <p>Case cited and approved: Alkire v. Myers Lumber Co., 57 Wash., 300.</p> <p>Cases cited and distinguished: Holloran v. Union Iron & Foundry Co., 133 Mo., 470; Lupher v. Atchison, etc., R. Co., 86 Kan., 712.</p>

<p>FROM KNOX.</p> <p>Appeal from the Chancery Court of Knox County. —Will D. Wright, Chancellor.</p>

<p>FROM HAMILTON.</p> <p>Appeal from the Circuit Court of Hamilton County to the Court of Civil Appeals, and by certiorari to the Court of Civil Appeals from the Supreme Court.— NathaN L. BaohmaN, Judge.</p>

<p>FROM KNOX.</p> <p>Appeal from the Chancery Court of Knox Connty. —Wilt. D. Weight, Chancellor.</p>

<p>PROM HAMILTON.</p> <p>Appeal from tbe Criminal Court of Hamilton County. — -S, D. McReynolds, Judge.</p>

<p>FROM HAMILTON.</p> <p>Appeal from the Circuit Court of Hamilton County to the Court of Civil Appeals, and by certiorari to the Court of Civil Appeals from the Supreme Court. —Nathan L. Bachman, Judge.</p>

<p>FROM KNOX.</p> <p>Appeal from the Circuit Court of Knox County. —Yon. A. Huffaker, Judge.</p>

<p>FROM KNOX.</p> <p>Appeal from the Chancery Court of Knox County.' —Will D. Weight, Chancellor.</p>

<p>1. BILLS AND NOTES. Agreement to extend time of payment. Effect on liability of accommodation maker.</p> <p>The general provisions of Negotiable Instruments Law (Laws 1899, chapter 94). are: “The person primarily liable on an instrument is the person who by the terms of the instrument is absolutely required to pay the same. All other parties are secondarily liable.” Section 119 provides that a negotiable instrument is discharged: “1. By payment in due course, by or on behalf of the principal debtor; 2. By payment in due course, by the party accommodated, where the instrument is. made or accepted for accommodation; 3. By the intentional cancellation thereof by the holder; 4. By any other act which will discharge a simple contract for the payment of money; 5. When the principal debtor becomes the holder of the instrument at or after maturity in his own right.” Section 120 provides that a person secondarily liable on the instrument is discharged (subsection 6); “By an agreement binding upon the holder to extend the time of payment, or to postpone the holder’s right to enforce the instrument, unless made with the assent of the party secondarily liable, or unless the right of recourse against such party is expressly reserved.” Held, that a person signing a note as maker, but shown by extrinsic evidence to have been an accommodation maker was primarily liable, and is not discharged by an agreement, although made without his knowledge or consent, between the holder and maker, for valuable consideration, to extend the time of payment. (Post, pp. 421-427.)</p> <p>Acts cited and construed: Acts 1899, ch. 94.</p> <p>Cases cited and approved: Bank v. Walter, 104 Tenn., 11; Vestal v. Knight, 54 Ark., 97; Bowen v. Darby, 14 Fla., 202; Perry-V. Hodnett, 38 Ga., 103; Meredith v. Dibrell, 127 Tenn., 387; Hamilton Nat. Bank v. Breeden et ah, 130 Tenn., 465; Hermitage Nat. Bank v. Carpenter, 131 Tenn., 136; Pharr v. Stevens, 124 Tenn., 669; Vanderford v. Nat. Bank, 1Ó5 Md., 164; Fuller-ten Lbr. Co. v. Snouffer, 139 Iowa, 176; Nat. Citizens’ Bank v. Toplitz, 178 N. Y„ 464.</p> <p>Case cited and distinguished: Union Trust Co. v. McGinty, 212 Mass., 205.</p> <p>Code cited and construed: See. 3517 (S.).</p> <p>2. PRINCIPAL AND SURETY. Statutes. Repeal. Implied repeal by act relating to same subject.</p> <p>Shannon’s Code, sec. 3517, providing that a surety, as a party secondarily liable, may he discharged from liability by giving the holder of the note thirty days’ written notice to sue, and section 3522, providing that a surety may be discharged from liability by the principal debtor procuring a stayor to stay the judgment, in so far as they conflict with the later legislative enactment in the Negotiable Instruments Law, were repealed by that act. (Post, pp. 421-427.)</p>

<p>1. MUNICIPAL “CORPORATIONS. Chief of police. Removal. Proceedings.</p> <p>Under the charter of the city of Knoxville, providing that officers shall he subject to removal from office for misconduct or failure to discharge the duties of the office, by a majority vote of the commissioners, as a municipal tribunal must act with some degree of conformity to the rule of the common law, the petitioner, chief of police, was entitled to notice of time and place of trial that he might be present in person and with witnesses, and there must be a charge against him, stated with some certainty, before he can properly be removed from office. (Post, pp. 431, 432.)</p> <p>Case cited and distinguished: Hayden v. Memphis, 100 Tenn., 582.</p> <p>2. CERTIORARI. Nature and scope at common law.</p> <p>Certiorari at common law lies to review and supervise the proceedings of inferior tribunals by a superior tribunal, but does not take the place of appeal or writ of error, and brings up the entire record to determine whether there has been an absence or excess of jurisdiction or a failure to proceed according to the essential requirements of the law.- (Post, pp. 432-434.)</p> <p>Case cited and distinguished: Tennessee Railroad Co. v. Campbell, 109 Tenn., 645.</p> <p>Code cited construed: Secs. 4853, 4854 (S.).</p> <p>Constitution cited and construed: Art. 6, sec. 10 (1870).</p> <p>3. CERTIORARI. Existence of other remedy. Right of appeal.</p> <p>Under Const, art. 6, sec. 10, providing that judges of inferior courts of law and equity shall have power in all civil cases to issue writs of certiorari on sufficient cause, Shannon’s Code, sec. 4853, providing that certiorari may he granter whenever authorized by law, and in all eases where an inferior tribunal, etc., exercising judicial functions, has exceeded the jurisdiction conferred, or is acting illegally, when in the judgment of the court there is no other plain, speedy, or adequate remedy, and section 4854, providing that certiorari lies where no appeal is given, the existence of a right of appeal does not bar the issuance of common-law certiorari and the affirmative provision was not intended to work a change in the common-law function of the writ as a supervisory or superintending writ. {Post, pp. 432-434.)</p> <p>4. CERTIORARI. Scope. Availability in civil cases.</p> <p>The common-law writ of certiorari, although its earliest use was on the criminal side of the Court of Kings Bench, is a remedy in civil cases. {Post, pp. 432-434.)</p> <p>5. CERTIORARI. Scope. “Excess of jurisdiction.” “Want of jurisdiction.”</p> <p>Under Shannon’s Code, sec. 4853, providing that a writ of certiorari may be granted where an inferior tribunal or officer, exercising judicial functions, has exceeded the jurisdiction conferred, or is acting illegally, although “excess of jurisdiction,” as distinguished from absence of jurisdiction, means that an act, though within the general powers of the tribunal, is not authorized and invalid, because the conditions which alone authorize the exercise of the general power in respect of it are wanting, illegality of action and excess of jurisdiction being placed on the same plane, in neither event is the court deprived of its judgment in respect of the inadequacy of appeal as a mode of review, and of its right to issue common-law cer-tiorari. {Post, pp. 434-43.9.)</p> <p>Cases cited and approved: Duggan v. McKinney, 15 Tenn., 21; Memphis & C. R. v. Brannum, 96 Ala., 461; State ex rel. Vaughn v. Ashland, 71 Wis., 502; Rex v. Standard Hill, 4 Maulé & S. 378; Abney v. Clark, 87 Iowa, 728; State v. City of Pond du Lac, 42 Wis., 295.</p> <p>Cases cited and distinguished: Ex Parte Knight, 71 Tenn., 401; State ex rel. v. G-uinotte, 156 Mo., 513; Houser v. McKennon, 60 Tenn., 287; Independent Pub. Co. v. Am. Press Association, 102 Ala., 475.</p> <p>Code cited and construed: Sec. 4853 (S.).</p>

<p>1. EVIDENCE. Documentary evidence. Ancient deed. Admis-_ sibility.</p> <p>While recitals in a recent deed are not evidence, except as between parties to it, recitals in a deed, which had been recorded more than thirty years, and was therefore an ancient deed, that the grantors were heirs of the then record owner of the land conveyed, as heirship and family can be proved by hearsay evidence, were admissible as prima facie evidence of the facts . recorded against strangers to the title, especially as the recitals were further corroborated by the fact that the grantee and his successor in title paid the taxes on the land and for thirty years exercised such control and public acts of ownership that it was generally known by the name of said successor in title. (.Post, pp. 447-457.)</p> <p>Cases cited and approved: Stokes v. Dawes, 4 Mason, 268; Deery v. Cray, 5 Wall., 795; Dougherty v. Weishans, 232 Pa., 121; Jackson v. Gunton, 26 Pa., Snper. Ct., 203; Bell v. Barron, 14 Vt., 307; Wilson v. Braden, 56 W. Va., 372; Webb v. Ritter, ■60- W/Va., 193; Schermerhorn v. Negus, 2 Hill. (N. Y.), 335; Little v. Palister, 4 Greenl., 209; Fulkerson v. Holmes, 117 U. S., 389; Williams v. Conger, 125 U. S., 396; Railroad v. Stealey, 66 Tex., 468; Hodge v. Palms, 117 Fed., 396; Bowser v. Cravener, 56 Pa., 13,2; Jackson v. Willson, -9 Johns., 92; Jackson v. Browner, 18 Johns., 37; Jackson v. King, 5 Cow. (N. Y.), 237; Davis v. Wood, 1 Wheat., 6; Deery v. Cray, 5 Wall., 795; Carver v. Jackson, 4 Pet., 1; Crane v. Astor, 6 Pet., 598; Garwood v. Dennis, 4 Bin., 314; Stokes v. Dawes, 4 Mason, 268; Jackson v. Cooley, 8 Johns., 128; Rollins v. Railroad, 73 N. J. L., 64; Wilson v. Braden, 56 W. Va., 372; Webb v. Ritter, 60 W. Va., 193.</p> <p>Cases cited and distingushed: Little v. Palister, 4 Greenl. (Me.), 209; Fulkerson v. Holmes, 117 U. S., 389; Williams v. Conger, 125 U. S., 397; Wilcox v. Blackwell, 99 Tenn., 352.</p> <p>2. EVIDENCE. Documentary evidence. Ancient deed. Copy. Admissibility.</p> <p>A certified copy of an ancient deed, which had been on record for more than thirty years, without the slightest suspicion or question, was admissible, and had the same probative value as proof of recitals as the original would have had if produced. (Post, pp. 457-461.)</p> <p>Cases cited and approved: Applegate v. Lexington, etc., Mining Co., 117 TJ. S., 263; Railroad v. Stealey, 66 Tex., 468; Hodge v. Palms, 117 Fed., 396.</p> <p>Cases cited and distinguished: Byrd v. Phillips, 120 Tenn., 14; Woods v. Bonner, 89 Tenn., 418.</p> <p>3. DEEDS. Requisites. Description of property. Designation by entry number.</p> <p>An ancient deed, referring to land by its entry number, in accordance with the custom at the time of its execution to refer to the entry and grant numbers in describing the land conveyed, was a sufficient description of the land conveyed, as the clear intention of the parties should be made effective, when the court can accomplish it by recognizing the legal and actual connection effected between the entry and grant by the issuance of the latter upon the former. (Post, p. 462.)</p> <p>Case cited and distinguished: Lieherman v. Clark, 114 Tenn., 141.</p> <p>4. WILLS. Certified copy of foreign will. Admissibility.</p> <p>Under Shannon’s Code, sec. 3914, providing that wills executed in other States, etc., shall he proved according to the laws of this State, and certified in the manner prescribed by Act Cong. May 26, 1790, chapter 11, 1 Stat. 122 (U. S. Comp. St. 1913, see. 1519), and section 3915, providing that a copy of a will so certified shall be registered in the county where the land lies, and a copy from the books of the register, duly certified, shlal be evidence, a certified copy of a foreign will of one of plaintiff’s predecessors in title, which was probated by the proper officer in the foreign State, and a duly certified copy of which, with the certificate of probate, was recorded in Tennessee, was admissible. (Post, p. 463.)</p> <p>Code cited and construed: Secs. 3914, 3915 (S.).</p> <p>5. WILLS. Foreign will.- Documentary evidence.</p> <p>Under Shannon’s Code, sec. 3914, providing that a foreign will shall be proved according to the laws of this State, and section 3904, providing that a will not contested^ may be proved by one of the subscribing witnesses, a certified copy of a foreign will, proved by only one witness, was admissible. (Post, p. 463.)</p> <p>6. WILLS. Certified copy of foreign will. Admissibility.</p> <p>A certified copy of a foreign will, setting forth the entire will verbatim, the affidavit of subscribing witness, oath and qualification of executor, and certificate of surrogate that above constituted the will and probate thereof, upon which letters testamentary issued to the executor, sufficiently showed the probate of the will. (Post, pp. 463-465.)</p> <p>Cases cited and approved: McGuire v. Hay, 25 Tenn., 422; Mosely v. Wingo, 75 Tenn., 147.</p> <p>Case cited and distinguished: Donegan v. Taylor, 25 Tenn., 504.</p>

<p>1. REFORMATION OF INSTRUMENTS. Deed. Description. Mistake.</p> <p>A lumber company owning land on both sides of a mountain which had it surveyed so as to show the part of the land on the south side, which survey, hy reason of a mistake in the name of a ridge, one of the natural boundaries of the land, included fifty acres between the .main ridge and a spur ridge, and which intended, as did the purchaser, that its deed should follow the survey, and the description in whose deed corresponded with the survey, made no mistake in drafting the deed to include the land in dispute, but conveyed exactly what it intended to convey, and hence was not entitled to a reformation of the deed on the ground of mistake. {Post, pp. 470-476.)</p> <p>Case cited and approved: Baker v. Harlan, 71 Tenn., 505; Graham v. Guinn, 43 S. W., 749; Armstrong v. Short, 95 Ind., 326.</p> <p>Cases cited and distinguished; Webster v. Stark, 78 Tenn., 406; Water Power Co. v. Merriman, 35 Minn., 42; Wise v. Brooks, 69 Miss., 891.</p> <p>2. REFORMATION OF INSTRUMENTS. Grounds. Mistake.</p> <p>To he the subject of correction a mistake in an instrument must have been mutual, or there must have been a mistake of one party influenced by fraud of the other. {Post, pp. 470-476.)</p> <p>3. REFORMATION OF INSTRUMENTS. Mistake. Mutuality.</p> <p>A grantor in order to obtain a reformation of his deed must show that he made a mistake, and cannot obtain relief upon a mere showing that the grantee labored upon a misapprehension or of the grantee’s fraud. {Post, pp. 470-476.)</p> <p>4. DEEDS. Construction. Intention of grantor.</p> <p>The purpose of the parties at the time a deed was made will determine its effect, for the primary rule of the construction of contracts is to carry out the intention of the parties thereto. {Post, pp. 476, 477.)</p> <p>5. APPEAL AND ERROR. Admission of evidence. Objection. Estoppel.</p> <p>Complainant in a bill for the reformation of a deed whose case as a matter of fact rested on extrinsic evidence, could not insist on the defendant’s appeal that the court should not look to parol proof to determine the controversy. (Post, p. 477.)</p>

<p>PARDON. Parole. Arrest.</p> <p>Under Acts 1913, chapter 8, providing for indeterminate sentences and for parole of convicts, section 3 of which provides that the convicts, while on parole, shall remain in the custody of the hoard of parole and under its control, subject at any time to be returned to the penitentiary, a convict on parole is still within the custody of the State, and cannot be confined in the county workhouse under a former conviction for a petty offense, any more than he could while he was still within the penitentiary.</p> <p>Acts'cited and construed. Acts 1913, eh. 8.</p> <p>Case cited and approved: Woods v. State, 130 Tenn., 100.</p>

<p>STATUTES. Validity. Title. “Automobiles.”</p> <p>Acts of 1905, chapter 173, the title to which refers only to automobiles, but the body of which regulates the use of motorcycles, locomobiles, and other vehicles of like character, excepting street cars, does not violate Const., art. 2, sec. 17, providing that no bill shall embrace more than one subject, that subject to be expressed in the title, since “automobile” is defined to be a vehicle or mechanism, especially a self-propelled vehicle suitable for use on a street or roadway, and the term is broad enough to include the other vehicles mentioned in the body of the act.</p> <p>Acts cited and construed: Acts 1905, ch. 173.</p> <p>Cases cited and approved: Malone v. Williams, 118 Tenn., 438; Palmer v. Express Co., 129 Tenn., 116; Brown v. Maryland, 12 Wheat., 436; State v. Yardley, 95 Tenn., 560; Cole Mfg. Co. v. Falls, 90 Tenn., 469; Ellis v. State, 92 Tenn., 93; Railroads v.</p> <p>Crider, 91 Tenn., 507; Henley v. State, 98 Tenn., 665; Austin v. State, 101 Tenn., 562; State ex rel. v. Schlitz Brewing Co., 104 Tenn., 715.</p> <p>Cases cited and distinguished: Hardaway v. Lilly, 48 S. W., 712; Railroad v. Harris, 99 Tenn., 684.</p> <p>Constitution cited and construed: Art. 2, sec. 17.</p>

<p>FROM HAMILTON.</p> <p>Appeal from tbe Chancery Court of Hamilton County. — W. B. Garvin, Chancellor.</p>

<p>FROM CAMPBELL.</p> <p>Appeal from the Chancery Court of Campbell County to the Court of- Civil Appeals, and by cer-tiorari to the Court of Civil Appeals from the Supreme Court. — Hugh G. Kyle, Chancellor.</p>

<p>FROM HAMILTON.</p> <p>Appeal from the Circnit Court of Hamilton County to the Court of Civil Appeals, and by certiorari to the Court of Civil Appeals from the Supreme Court. —Nathan L. Bachman, Judge.</p>

<p>FROM HAMILTON.</p> <p>Appeal from the Chancery Court of Hamilton County. — W. B. Garvin, Chancellor.</p>

<p>1. CARRIERS. Limiting liability. Interstate shipment.</p> <p>Where alternate rates, fairly based on valuation, are offered for an interstate shipment, the carrier may limit its liability by special contract. (.Post, pp. 514-516.)</p> <p>Cases cited and approved: George N. Pierce Co. v. Wells, P. & Co., 236 U. S., 278; Louisville & N. B. Co. v. Montgomery, 135 Tenn., -; Cincinnati, etc., B. Co. v. Bankin, 241 U. S., 319.</p> <p>2. CARRIERS. Interstate shipment. Schedules. Notice* Limitation of. liability.</p> <p>A shipper suing on an. interstate shipment contract for injuries to a shipment of horses is chargeable with notice of the contents of schedules filed by the carrier with the Interstate Commerce Commission and duly published, where the shipment contract refers to alternating rates established by the carrier and sets forth the shipper’s acceptance of the lower rate because of embodied limitations on the carrier’s liability. (Post, pp. 616-518.)</p> <p>Case cited' and distinguished: Kansas City So. Ry. Co. v. Carl, 227 U. S., 639.</p> <p>3. CARRIERS. Interstate shipment. Schedules of rates.</p> <p>In an action for injuries to an interstate shipment of horses, a provision of the shipment contract limiting the carrier’s liability and referring to alternative rates established prima facie that the carrier had complied with the requirements of the act of Congress respecting the filing and publication of its schedules of rates. (Post, pp. 618, 619.)</p> <p>Cases cited and approved: Louisville & N. R. Co. v. Maxwell, 237 U. S., 94; Boston & M. R. Có. v. Hooker, 233 U. S., 97.</p>

<p>1. INSURANCE. Fraternal insurance. Change of beneficiary.</p> <p>The by-laws of the fraternal order in which deceased was insured provided tha.t a change of beneficiary would not be effective until the old certificate was surrendered and a new one issued and that any attempt to change the beneficiary by will, contract, assignment, or otherwise than by strict compliance with the bylaws shall be absolutely . null and void. • Deceased, holding a certificate in which his mother was named as beneficiary, stated soon after his marriage, subsequent to the issuance of the certificate, and two years before his death, that he desired to have the certificate changed and name his wife as beneficiary, but made no effort to comply with the by-laws, beyond taking the policy on one occasion to the meeting place of thé local lodge, at which time no meeting was to be held, and thereafter delivered the certificaté to his wife. Held, that the acts of deceased were not a sufficient attempt on his part to comply with the rules of the order to permit equity to decree an effective change. (Post, pp. 524-526.)</p> <p>Oases cited and approved: Ancient Order of Gleaners, 165 Mich., 1; Johnson v. N. Y. Life Ins. Co., 56 Colo., 178; Modern Woodmen v. Headle, 88 Vt., 37; Schardt v. Schardt, 100 Tenn., 276.</p> <p>Case cited and distinguished: Dink v. Fink, 171 N. Y., 616.</p> <p>2. INSURANCE. Fraternal Insurance. Change of beneficiary.</p> <p>Where the insured in a certificate of fraternal insurance has the right to change the beneficiary in a manner set forth in the by-laws of the order, while the beneficiary in such certificate does not have a vested interest, he does have a contingent right and an expectancy in the nature of an inchoate interest, subject to be defeated by an exercise of the power of substitution substantially in the manner provided by the laws of the order, (post, p. 526.)</p> <p>3. INSURANCE. Fraternal insurance. Assignment of certificate.</p> <p>Where the by-laws of a fraternal order provided for change of beneficiary by surrender of the old certificate and issuance of a new one and that any attempt by a member to change the beneficiary by will, contract, assignment, or otherwise shall be null and void, the deceased did not, by delivery of his certificate to his wife with the intention that she should have the benefit of it, vest in her the right to taire its proceeds as assignee. {Post, pp. 526, 527.)</p> <p>Case cited and approved: Johnson v. N. Y. Life Ins. Co., L. R. A., 1916a, 877.</p>

<p>PROM PUTNAM.</p> <p>Appeal from the Chancery Court of Putnam County to the Court of Civil Appeals, and by certiorari to the Court of Civil Appeals from the Supreme Court— A. H. Eobeets, Chancellor.</p>

<p>FROM CAMPBELL.</p> <p>Error to the Criminal Court of Campbell County— Xen Hicks, Judge.</p>

<p>1. ESTOPPEL. Deed. Warranty. After-acquired property.</p> <p>Where the grantor in a general warranty deed was without title, upon his subsequent acquisition of title it immediately inured to the benefit of the grantee by virtue of the warranty. (Post, pp. 546-548.)</p> <p>Cases cited and approved: Stuart v. Nelson, 5 Tenn., 200; Henderson v. Overton, 10 Tenn., 394; Robertson v. Gaines, 21 Tenn., 367; Gookin v. Graham, 24 Tenn., 480; Birdwell v. Cain, 41 Tenn., 301; Susong v. Williams, 48 Tenn., 625; Coal Creek Mining & Mfg. Co. v. Ross, 80 Tenn., 1; Woods v. Bonner 89 Tenn., 411; Bird v. Cross, 123 Tenn., 419.</p> <p>2. CHAMPERTY AND MAINTENANCE. Conveyance of pretended interest in lands. Statute. “Champertous.”</p> <p>Under Shannon’s Code, section 3174, providing that the provisions of section 3171, 3172, and 3175, making the conveyance of pretended interests in land champertous, shall not prevent an absolute and ionarfide sale of mortgage of lands not possessed and held adversely at the time of such sale or mortgage, a conveyance by one without title or possession is not champertous, unless the land was held adversely. (Post, p. 548.)</p> <p>Cases cited and approved: Wilson & Wheler v. Nance & Collins, 30 Tenn., 191; Ruffin v. Johnson, 52 Tenn.,'608.</p> <p>3. CHAMPERTY AND MAINTENANCE. Grant of land held adversely. Estoppel.</p> <p>Although land conveyed by warranty deed by one out of possession and without title was held adversely, the champerty statutes would not apply as between the parties; as the grantor would be estopped to deny the validity of the deed, (Post, p. 548.)</p> <p>4. ADVERSE POSSESSION. Sufficiency of possession.</p> <p>A possession consisting of intermittent acts of having dirt thrown upon a lot from time to time to fill up holes and occasionally storing lumber and wagons thereon is not sufficient to support a claim of adverse possession. (Post, pp. 548-553.)</p> <p>Case cited and approved: Gernt v. Floyd, 131 Tenn., 119.</p> <p>5. BOUNDARIES. Description. Adjoining lands.</p> <p>Where a deed to land which was bounded by two streets meeting at an acute angle described the land as beginning at a point fifty feet east of an adjoining lot running fifty feet along the first side and running hack in paralled lines to the second street, the description indicated that the lines were intended to run parallel with the adjoining lot which was at right angles to the second street. (Post, p. 553.)</p> <p>6. DEEDS. Construction.</p> <p>Where a grantor made two conveyances correctly describing the . lots conveyed, hut staked off the lot in the second conveyance so as to. include a portion of the first, the description must he confined to the language of the deeds, and, nothing else appearing, the successors in title and the grantee of the first lot may recover that portion of their lot staked off as belonging to the second. (Post, pp. 553/554.)</p> <p>7. ADVERSE POSSESSION. Tacking possession. Necessity of privity.</p> <p>Successive adverse possessions under the statute of limitations can not be tacked unless, they are connected by contract or other form of legal privity, and each subsequent possession not so connected takes a new start unaided by the prior possession. (Post, pp. 554-556.)</p> <p>Acts cited and construed: Acts 1819, ch. 28.</p> <p>Cases cited and approved: Erclt v. Church, 87 Tenn., 575; Marr v. Gilliam, 41 Tenn., 49l!</p> <p>8. ADVERSE POSSESSION. Presumption of grant.' Successive possession.</p> <p>Under the doctrine of presumption of grant by continuous adverse possession of land for twenty years while successive possession must be connected without any hiatus, there need be no privity of contract or other legal privity between the successive occupants. (Post, pp. 556-558.)</p> <p>Cases cited and approved: Marr v. Gilliam, 41 Tenn., 488; Scales v. Cockrill, 40 Tenn., 433; Mimms and Wife v. Ewing, 83 Tenn., 667; Ferrell v. Ferrell, 60 Tenn., 329; Saunders v. Simpson, 97 Tenn., 382; Dewey v. Nelms, 132 Tenn., 254; Gwathney v. Stump, 2 Tenn., 308; Hanes v. Peck’s Lessee, 8 Tenn., 228; Gilchrist v. McGee, 17 Tenn., 455; McCorry v. King’s Heirs, 22 Tenn., 267; Chilton v. Wilson’s Heirs, 28 Ténn., 399; Lessee of Brock v. Burchett, 32 Tenn., 27; Collins v. Hipshire, 32 Tenn., 109, 111; Cannon v. Phillips, 34 Tenn., 211; White v. Lavender, 37 Tenn., 648; Williams v. Donnell, 39 Tenn., 695; Snoddy v. Kreutch, 40 Tenn., 301; Hunter v. Bills, 3 Shan. Cas., 97 ; Railroad v. Hays, 79 Tenn., 382; Dunn v. Eaton, 92 Tenn., 743.</p> <p>9.LIMITATION OF ACTIONS. Disability. Infancy.</p> <p>As it must appear that the parties against whom a presumption of grant to land is sought to be enforced were in a position to resist possession during the whole twenty years, where the possession of an adverse holder was less than twenty years when the owner died leaving minor children, one of the children still a minor is entitled to recover his interest in the property; the presumption not having completely run as to him because oí his disability. (Post, pp. 556-658.)</p> <p>10. LIMITATION OF ACTIONS. Disability. Infancy.</p> <p>As the three years’ saving for infants prescribed by the statute of limitations has no bearing upon the presumption of title to land from lapse of time, where one was an infant at the time of inheriting land to which another claims title by adverse possession, only the time during which the disability existed will be counted out in determining the length of the adverse possession. (Post, pp. 558, 55.9.)</p> <p>11. TENANCY IN COMMON. Right to sue in ejectment. Decree.</p> <p>Tenants in common may sue together in ejectment, and one may recover and be entitled to a decree, although the other be barred and fail to recover. (Post, pp. 559, 560.)</p> <p>Cases cited and approved: Barrow’s Lessee v. Navee, 10 Tenn., 227; Wade v. Johnson, 24 Tenn., 119; Belote v. White, 39 Tenn., 703; Williams v. Mining & Mfg. Co., 115 Tenn., 578; Jones v. Phillips, 57 Tenn., 562; Turner v. Lumbrick, 19 Tenn., 7.</p> <p>12. EJECTMENT. Title to other action.</p> <p>A widow, not being the heir of the husband, cannot recover in ejectment. (.Post, pp. 560, 561.)</p>

<p>SPECIFIC PERFORMANCE. Time of performance. Abandonment of right.</p> <p>Where contracts for the purchase of corporation stock of several persons were not completely executed within the time limit because of failure-of the purchasers to perform their part, a seller was entitled to specific performance, having performed his part of the agreement, notwithstanding other sellers under the same contract, becoming alarmed at the purchaser’s delay, sold at' less than the contract price.</p>

<p>1. ATTORNEY ANC CLIENT. Disbarment. Grounds.</p> <p>Tlie relator owner of land placed it in the hands of defendant attorney for sale, agreeing the attorney should receive one-half of the remainder over the amount of an incumbrance and one-half of any discount procured by defendant on the secured notes. Defendant sold the property representing that it was not incumbered and furnished the purchaser as his attorney an abstract of title apparently good, which did not disclose the in-cumberance, and received the price which he did not pay to the owner. Subsequently he purchased two of the secured notes at a discount, and, on failing to purchase two more, procured the sale of the land by the trustee under the deed of ' trust, and purchased it himself at the sale. Defendant failing to comply with the terms of the sale, the property as again readvertised and sold to his wife. This sale was subsequently set aside for fraudulent collusion between the trustee and the defendant. The defendant did not notify the relator purchaser of the sale under the deed of trust. Held, that the transactions constituted a violation of the trust imposed in defendant by ■relators, owner and purchaser of the land, and that defendant will be disbarred. (.Post, pp. 5'79-584.)</p> <p>2. ATTORNEY AND CLIENT. Summary remedy of client.</p> <p>While the facts stated against the defendant make out 'a case of fraud and deceit for which petitioners may recover, they do not make out a case of having received money for which a summary judgment for the amount of the purchase price of the land can be recovered. (Post, pp. 584, 585.)</p>

<p>FROM WILSON.</p> <p>Appeal from the Chancery Court of Wilson County to the Court of Civil Appeals, and by certiorari to the Court of Civil Appeals from the Supreme Court — J. W. Stout, Chancellor.</p>

<p>FROM CANNON.</p> <p>■ Appeal from the Circuit Court of Cannon Connty to the Court of Civil Appeals, and by certiorari to to the Court of Civil Appeals from the Supreme Court. — Jno. E. RiohaRdson, Judge.</p>

<p>PROM FENTRESS.</p> <p>Appeal from the Circuit Court of Fentress County to the Court of Civil Appeals, and by certiorari to the Court of Civil Appeals from the Supreme Court. — C. E. Snodgrass, Judge.'</p>

<p>FROM FAYETTE.</p> <p>Appeal from tlie Chancery Court of Fayette County to the Court of Civil Appeals, and hy certiorari to the Court of Civil Appeals from the Supreme Court— Colist P. McKlnkey, Chancellor. •</p>

<p>FROM DAVIDSON.</p> <p>Appeal from the Chancery Court of Davidson County. — Jno. Allison, Chancellor. \ .</p>

<p>FROM SUMNER.</p> <p>Appeal from tbe Chancery Court of Sumner County. — J. W. Stout, Chancellor.</p>

<p>FROM DAVIDSON.</p> <p>Appeal from the Chancery Court of Davidson County.- — Jno. Allison, Chancellor.</p>

<p>1. MORTGAGES. Liabilities secured. Renewal notes.</p> <p>A mortgagor and mortgagee may agree that renewal notes representing balances of notes secured by a trust deed shall not effect any novation, but constitute parts of the obligations secured by the trust deed. (Post, pp. 650 — 652.)</p> <p>2. INTEREST. Notes. Annual interest.</p> <p>A stiplation in a note for the payment of interest annually is valid and binding on the maker or indorser or one who has assumed the payment of the note. (Post, p. 652.)</p> <p>Cases cited and approved: House v. Tenn. College, 54 Tenn., 129; Lane v. Railroad Co., 81 Tenn., 547.</p> <p>3. INTEREST. Notes. Stipulation for annual interest. Effect after maturity.</p> <p>A stipulation in a note for the payment of interest annually has operative effect only to the date of maturity of the note, after which time interest must be computed without annual risks. (Post, PP- 652, 653.)</p> <p>4. INTEREST. Annual interest. Computation after maturity of note. ';</p> <p>In the absence of all contract, express or implied, for interest beyond maturity of the principal debt, annual interest thereafter is not recoverable, though there may be a provision therefor in the contract before the principal falls due. (Post, p. 653.)</p> <p>5. BILLS AND NOTES. Attorney’s fee. Enforcement.</p> <p>An attorney’s fee provided for in a note is a constituent part of the obligation, enforceable by or in behalf of the holder, and is not a distinct obligation or penalty, to be enforced in behalf of the attorney or as a separate cause1 of action. (Post, p. 654.)</p> <p>6. BILLS AND NOTES. Attorney’s fee. Liability of one assuming note.</p> <p>The liability of one assuming to pay a mpte includes liability for an attorney’s fee stipulated in the note. (Post, p. 654.)</p> <p>Cases cited and approved: Franklin v. The Duncan, 133 Tenn., 472; Daly v. Drug Co., 127 Tenn., 425.</p> <p>7. MORTGAGES. Purchase of mortgaged premises. Attorney’s "fee. Assuming debt.</p> <p>A purchaser of mortgaged premises, assuming the mortgage in general terms, becomes liable for all that may he actually due upon it, which may include attorney’s fee. (Post, p. 654.)</p> <p>Cases cited and approved: Johnson v. Harder, 45 Iowa, 677; Hatcher v. Kinkaid (Okl.), 150 Pac., 182.</p> <p>8. MORTGAGES. Sale of premises. Assuming mortgage. Right of purchaser.</p> <p>A vendee assuming an existing trust deed or mortgage on the land takes the incumbrance as it stands, subject to all the conditions touching the mortgage debt, and he cannot show that the debt is different, or payable in a manner different from its terms. (Post, p. 654.)</p> <p>9. MORTGAGES. Debt secured. Attorney’s fee.</p> <p>Where a note contains a stipulation for the payment of an attorney’s fee and is secured by a mortgage containing no such stipulation, suck fee, on being incurred, becomes a part of ttke debt for wkick tke mortgage may be foreclosed; for tke securing of tke note secures tké attorney’s fee provided for tkerein, it being a constituent part of tke obligation. (Post, pp. 654, 655.)</p> <p>Cases cited and approved: Bailey v. Butler, 138 Ala., 153; County Bank v. Goldtree, 129 Cal., 160; Worth v. Worth, 155 Cal., 599; Millsaps v. Chapman, 76 Miss., 942; Carkart v. Allen, 56 Fla., 763.</p> <p>10. MORTGAGES. Sale of premises. Assuming debt. Attorney’s fee.</p> <p>Where notes contained stipulation for attorney’s fee, but were secured by trust deed containing no suck stipulation, such attorney’s fees were enforceable on foreclosure of tke trust deed, as part of tke obligation secured thereby, against subvendees who had assumed payment of part of tke notes and whose deed ■ was subject to tke deed of trust, suck subvendees standing in tke shoes of tke mortgagor and not being innocent purchasers ”■ as respects tke attorney’s fee stipulation. (Post, pp. 655, 656.)</p> <p>Cases cited and approved: Ricketson v. Richardson, 19 Cal., 330; Fetes v. Laughlin, 62 Iowa, 532; Hinricks v. Brady, 20 S. D. 599.</p> <p>11. MORTGAGES. Assuming mortgage. Restricting personal Lia- • bility.</p> <p>Subvendees purchasing an undivided interest in mortgaged premises may assume, so far as personal liability on their part is concerned, tke payment of a specified pbrtion only of the mortgage debt. (Post, pp. 656, 657.)</p> <p>12. MORTGAGES. Sale of premises. Assuming mortgage. Release by payment.</p> <p>Tke purchaser of an undivided interest in mortgaged premises and assuming a portion of tke mortgage debt is not entitled, on paying the part of tke mortgage debt assumed by him, to have tke whole mortgage released as to his interest. (Post, p. 657.)</p> <p>Case cited and distinguished: Colby v. Cato, 47 Ala., 247.</p> <p>13. BILLS AND NOTES. Assuming liability. Attorney’s fee.</p> <p>The liability, oa stipulation to pay attorney’s fee, of one assuming to pay a note, is not affected by bis lack of actual notice or knowledge that the note contained suck a stipulation; knowledge of the terms of the note being presumed from its assumption. (Post, pp. 657, 658.)</p> <p>14. BILLS AND NOTES. Liability. Joint makers.</p> <p>Persons signing notes as joint makers,and primarily liable thereon to the payee cannot impose their attitude of sureties inter sese upon the payee or holder so as to affect his rights. (Post, p. 658.)</p> <p>Case cited and approved: Graham v. Shephard, 136 Tenn., ---.</p> <p>15. MORTGAGES. Assuming mortgage. . Primary and secondary liability.</p> <p>Where the grantee of mortgaged premises assumes payment of „ mortgage debt, he becomes the principal debtor and primarily liable 'therefor to the mortgagee; the mortgagor then taking the status of surety, so far as the promisor is concerned. (Post, pp. 658, 659.)</p> <p>Cases cited and approved: Sully v. Childress, 106 Tenn., 109; Panning v. Murphy, 126 Wis., 538.</p> <p>16. MORTGAGES. Assuming mortgage. Primary and secondary liability. /</p> <p>Where a mortgagor conveys the property to one who assumes the mortgage, who in turn conveys to another, who also assumes it, the latter becomes the principal debtor and primarily liable to the mortgagee. (Post, p. 659.)</p> <p>Case cited and approved: Hendricks v. Brooks, 80 Kan., 1.</p> <p>17. MORTGAGES. Foreclosure. Sale of Property. '</p> <p>Upon foreclosure of trust deed, where purchasers of an undivided interest from the mortgagor, having assumed and paid ■ a part of the mortgage debt, requested a separate sale of such interest, and the note holder objected that such sale would probably produce less than sale in solido, it was proper to advertise v and cry the sale on both bases and adopt the one which produced the larger result. (Post, pp., 659,660.) \</p>

<p>1. MORTGAGES. Priority. Notice contained in the mortgage.</p> <p>Where a timber company contracted with a railroad which agreed to extend its line to tap timber lands and agreed if it placed a mortgage on the railway property to insert a clause, which it did insert, reading, “subject to, and this indenture is executed with notice of the prior rights of the other parties” in the extension contract, such stipulation in the mortgage affected not only the trust company which held the mortgage, but every holder of bonds secured by the mortgage. (Post, pp. 676, 677.)</p> <p>2. SPECIFIC performance. Discretion of court.</p> <p>Specific performance of a contract is a discretionary remedy requiring a legal and not arbitrary discretion, and is given as a substitute for a legal remedy of compensation whenever the legal remedy is inadequate or impracticable. (Post, pp. 677, 678.)</p> <p>Cases cited and approved: Howard v. Moore, 36 Tenn., 321; Blair v. Snodgrass, 33 Tenn., 1.</p> <p>3. SPECIFIC PERFORMANCE. Contracts enforceable. Continuous-contracts.</p> <p>Courts of equity do not hesitate to specifically perform contracts for construction and operation of railroads merely because they are continuous and require skill in execution. (Post, pp. 678— 681.) .</p> <p>Cases cited and approved: McCann v. Nashville R. R. Co., 2 Tenn. Ch., 773; Starnes v. Newsom, 1 Tenn. Ch., 239; T. P. Ry. Co. v. Marshall, 136 U. S., 393; Rutland Marble Co. v. Ripley, 10 Wall, 339; U. P. Ry. Co. v. Chicago, etc., Ry. Co., 163 U. S„ 564; Joy v. St. Louis, 138 U. S., 1; Grand Trunk Western Ry. Co. v. Chicago, etc., R. Co., 141 Fed., 785; Schmidtz v. Louisville R. Co., 101 Ky., 441; Prospect Park, etc., R. Co. v. Coney Island, etc., R. Co., 144 N. Y„ 152; Cumberland Valley R. Co. v. Gettysburg, etc., R. Co., 177 Pa., 519; Southern R. Co. v. Franklin, etc., R. Co., 96 Va. 693; Louisville & N. R. Co. v. Miss., etc., R. Co., 92 Tenn., 681; Joy v. St. Louis, 138 U. S., 1.</p> <p>4. SPECIFIC PERFORMANCE. Contracts enforeable. Sufficiency of consideration.</p> <p>A contract by which a railroad agreed to extend its lines to tap timber lands, covering a period of twenty-seven years, is enforceable in equity, though the railroad bondholders could not receive full compensation by collection of freight rates until expiration of twenty-seven years. (Post, pp, 681 — 683.)</p> <p>Cases cited and approved; Rushbrooke v. O’Sullivan, 1 Ir. R., 323; Ward v. Newbold, 115 Md., 689; Patton v. Monongahela St. R. Co., 226 Pa., 372; Williams v. Lowe, 79 N. J. Eq., 173; Cock v. Evans, 17 Tenn., 287; Hall v. Ross, 4 Tenn., 202; Howard v. Moore, 36 Tenn., 321; Hudson v. King, 49 Tenn., 560; McCarty v. Kyle, 44 Tenn., 349; Morrison v. Searight, 63 Tenn., 478; Baker v. Shy, 56 Tenn., 89.</p> <p>5. RECEIVERS. Receiver’s certificates. Sale below par. Discretion of court.</p> <p>The matter of issuance of receiver’s certificates and their sale below par is so largely in the discretion of the chancellor that only in a gross abuse of his discretion will his action be revised. (Post, p. 683.)</p> <p>6. APPEAL AND ERROR. Receiver’s certificates. Right to object to issuance.</p> <p>A trust company holding a railroad mortgage, but failing to object to an order for issuance of receiver’s certificates at the time it was made or at the time when its answer in the proceeding was filed, or merely excepting to interlocutory orders authorizing issuance, but not following up such exception by application for writs of supersedeas, cannot on appeal object to the issuance. (Post, pp. 683, 684.)</p> <p>7. USURY. Receiver’s certificates. Sale below par.</p> <p>Since issuing receiver’s certificates is a mere incidental measure to accomplishing the purpose of the receivership, authorizing sale of such certificates to the best advantage, though below par, is not usury, especially if they were not sold for less than they would bring on the open market. (Post, pp. 684, 685.)</p> <p>8. EVIDENCE. Admissions. Conclusiveness as againt codefend-ants.</p> <p>In an action by a timber company for specifiie performance of a contract with a railroad to extend its lines to tap timber lands, wherein the railway company admitted every allegation in the bill, but a trust company holding a mortgage on the railroad which was subject to the rights under the contract was a foreign corporation and was proceeded against as a nonresident, the decree against it was based upon sufficient-proof by reason of the railway’s admissions. (Post, p. 685.)</p> <p>9. CORPORATIONS. Nonresident defendants. Appearance.</p> <p>There is no point in the insistence that a mortgagee of a railroad was denied the right to defend as a nonresident, where it did come in and answer, and its counsel was present on the examination of witnesses, and cross-examined witnesses, and made a full and complete defense to the bills, and procured a decree under its cross-bill. (Post, pp. 685, 686.)</p>

<p>FROM SCOTT.</p> <p>Appeal from the Chancery Court of Scott County. • — Hugh; G. Kyle, Chancellor.</p>